FPSLREB Decisions
Decision Information
The complainant made a complaint against his manager’s decision to reduce his work schedule after he announced his intention to become a shop steward – he also complained that his manager had threatened him with a harassment complaint with respect to him carrying out his shop steward duties – the Board found that s. 191(3) of the Act reversed the burden of proof and that it fell to the respondent to establish that the complaint was unfounded – the Board found that the respondent did not discharge the burden with respect to the reduction to the complainant’s work schedule – the Board ordered the respondent to pay the complainant the salary to which he would have been entitled had it not been for the reduction to his work schedule – the Board also ordered the respondent to pay the complainant damages for psychological harm.
Complaint allowed.
Decision Content
File: 561-02-00808
| Federal Public Sector Labour Relations and Employment Board Act and Federal Public Sector Labour Relations Act
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Before a panel of the Federal Public Sector Labour Relations and Employment Board
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BETWEEN
Complainant
and
CORRECTIONAL SERVICE of CANADA
Respondent
Indexed as
Choinière Lapointe v. Correctional Service of Canada
In the matter of a complaint made under section 190 of the Federal Public Sector Labour Relations Act
Before: Nathalie Daigle, a panel of the Federal Public Sector Labour Relations and Employment Board
For the Complainant: Valérie Charette, Professional Institute of the Public Service of Canada
For the Respondent: Andréanne Laurin, counsel
August 28 and 29 and October 17 and 18, 2018.
(FPSLREB Translation)
Reasons for Decision (fpslreb translation)
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I. Introduction
[1]
On July 28, 2016, Marc-André Choinière Lapointe (“the complainant”) made an unfair labour practice complaint. In it, he alleged that Andrée Ménard, his manager at Cowansville Institution (“the Institution”) of the Correctional Service of Canada (“the Service”) discriminated against him with respect to employment conditions, particularly by reducing his work schedule because he was a representative of an employee organization and by then threatening to file a harassment complaint against him because he carried out shop steward duties.
[3]
For the reasons that follow, I allow the complaint. I find that there is not enough evidence to show that on a balance of probabilities, the Service did not discriminate against the complainant with respect to employment conditions because he was a representative of an employee organization.
II. Preliminary matters
A. Identifying the respondent
[5]
I find that the facts alleged in the complaint are related to Ms. Ménard’s authority as a manager with the Service. I also note that the corrective measures that the complainant sought are not Ms. Ménard’s personal responsibility but instead that they fall under her employer’s powers and duties.
B. Burden of proof
[9]
When the complaint was made, ss. 185 and 186(2)(a)(i) of the Act read as follows:
...
191(3) If a complaint is made in writing under subsection 190(1) in respect of an alleged failure by the employer or any person acting on behalf of the employer to comply with subsection 186(2), the written complaint is itself evidence that the failure actually occurred and, if any party to the complaint proceedings alleges that the failure did not occur, the burden of proving that it did not is on that party.
[11]
The Service referred me to Laplante v. Treasury Board (Department of Industry and the Communications Research Centre), 2007 PSLRB 95 at paras. 84 and 88, in support of its argument that the complainant did not demonstrate that his complaint involved an unfair labour practice and that therefore, the burden of proof could not be reversed. Paragraph 88 of that decision reads as follows:
[88] In conclusion, the complainant must meet a precondition for the provision on the reversal of the burden of proof to apply. Before the employer can be required to prove that it did not contravene the prohibitions, the complainant must show that one of the circumstances described in subsection 186(2) of the new Act has been met. Without proof to that effect, the complaint is inadmissible and the reversal of the burden of proof cannot be applied. In this case, Ms. Laplante did not show that her complaint met the conditions for a complaint of unfair labour practice.
[12]
However, I note that although paragraph 88 of Laplante may give the impression that the complainant first had the burden of proof, the impression does not stand up when paragraph 88 is read in light of all the reasons that the Public Service Labour Relations Board (PSLRB) cited. Paragraph 85 indicates that “... the allegations must necessarily specify those reasons for the reversal of the burden of proof to apply.” Additionally, paragraph 87 states that “... the reversal of the burden of proof does not apply ... but only when the complainant alleges that the employer failed to comply with the prohibitions set out ... in the circumstances described in paragraphs (a), (b) or (c) ...”. Therefore, from Laplante, I hold that the burden of proof is reversed when the allegations in a complaint clearly point to a contravention of one of the prohibitions set out in s. 186(2) of the Act.
[13]
The Service also referred me to Gray and the Professional Institute of the Public Service of Canada v. Canada Revenue Agency, 2013 PSLRB 11 at para. 79, and Quadrini v. Canada Revenue Agency and Hillier, 2008 PSLRB 27 at paras. 20 to 33. Paragraph 79 of Gray reads as follows:
[79] The Board’s case law is that a complainant must make an arguable case for a violation of subsection 186(2) of the Act before the reverse onus is engaged; see Quadrini, Manella and Hager et al. As the Board stated in paragraph 32 of Quadrini: “... [T]he threshold is the following: taking all of the facts alleged in the complaint as true, is there an arguable case that the respondents have contravened subparagraphs 186(2)(a)(iii) or (iv) of the new Act?”
[14]
I note that unlike its original English version, although the French version of paragraph 79 of Gray might suggest that the complainant had the initial burden of proof, it seems clear from paragraph 93 of that decision that the respondent had to prove that the complaint was unfounded. I also note that in Quadrini, when ruling on a request to dismiss the complaint (without a hearing) for lack of jurisdiction, the PSLRB indicated that by accepting as proved the allegations in support of a complaint, the allegations must reveal the existence of an arguable case that an unfair labour practice occurred.
[16]
In turn, the complainant referred me to Quadrini, at paras. 25, 28, 45, and 47. Paragraph 25 reads as follows:
[25] The reverse onus contemplated by subsection 191(3) of the new Act is unusual in the framework of the statute and a clear exception to the normal expectation in proceedings before the PSLRB that the party who alleges a violation must prove it. The presence of the provision strongly suggests that the legislator believed that actions arising under subsection 186(2) would involve an exceptional situation where a different approach to burden of proof would be required to level the playing field between the parties.
[17]
Paragraph 28 of Quadrini states the following:
[28] Under a strict reading of either subsection 191(3) of the new Act or subsection 98(4) of the Code, the PSLRB or the Canada Industrial Relations Board (“the CIRB”), as the case may be, must take the existence of a complaint in writing that the employer or a person acting on behalf of the employer failed to observe an identified statutory prohibition as proof that that failure did occur. The burden then shifts to the opposing party to disprove that fact.
[18]
The PSLRB also noted at paragraph 45 of that decision that “[i]t has been and continues to be fundamental to the integrity of the labour relations systems ... that persons who have exercised rights accorded to them under those laws did so, and can continue to do so, without fear of reprisal.” The PSLRB then found at paragraph 47 that “[t]he concept of reprisal ... establishes the fundamental context within which an unfair labour practice complaint of this type must be considered.”
[19]
The complainant also referred me to paragraphs 37, 38, and 41 of Hager v. Statistics Survey Operations and the Minister responsible for Statistics Canada, 2009 PSLRB 80 (“Hager (2009)”). Paragraph 41 states that an arguable case can be made that an unfair labour practice occurred even if it is not based on the best interpretation of the facts or even on a good interpretation. The important thing is that there is an arguable case that the respondent’s decision was related to the complainant’s union activities. However, I note that as in Quadrini, the PSLRB had to rule on a request to dismiss the complaint without a hearing, for lack of jurisdiction.
[21]
The essential issue in this case is, do the allegations that support the complaint point to contraventions of the prohibition in s. 186(2)(a)(i) of the Act? I find that they are. The written complaint clearly alleges how Ms. Ménard discriminated against the complainant with respect to his employment. The allegations in support of the complaint specify that she reduced his work schedule because he was a shop steward at the relevant time and that she then threatened to file a harassment complaint against him because he carried out shop steward duties. These allegations are clearly related to contraventions of the prohibition in s. 186(2)(a)(i). Consequently, s. 191(3) creates a rebuttable presumption that the complaint is founded, which placed on the Service the burden of proving that it did not contravene the prohibition in s. 186(2)(a)(i).
III. Context
[22]
When the complaint was made, some nurses at the Institution’s Health Services held indeterminate full-time positions. Others held indeterminate part-time positions (18.75 hours per week). Some had first held determinate part-time positions.
[23]
The nurses at the Institution’s Health Services who held indeterminate part-time positions (18.75 hours per week) were guaranteed a work schedule of at least 18.75 hours per week. Depending on operational requirements, their work schedules could be increased for set terms.
IV. Summary of the evidence
[25]
As I already indicated earlier in this decision, s. 191(3) of the Act created a rebuttable presumption that the complaint was founded. Therefore, the Service had to prove that it did not discriminate against the complainant with respect to employment conditions, particularly by reducing his work schedule because he was an employee organization representative and by then threatening to file a harassment complaint against him because he performed shop steward duties.
[27]
At the hearing, the complainant testified to present his version of the facts. He also called two witnesses, Julie Perkins, a nurse at the Institution, and Richard Doyle, a nurse at Joliette Institution for Women. Mr. Doyle is also on the national labour-management consultation team as an Institute representative for the Service’s Quebec Region.
[28]
Ms. Ménard, who no longer works for the Service, testified for it. She explained that she was Chief, Health Services, at the Institution from 2000 to 2018. However, between November 2013 and March 2016, she held an acting position as Director, Health Services, Quebec Region, for the Service. She retired from the public service in August 2018. She stated that Benoit Henry, a nurse, held the acting position during her absence as Chief, Health Services, at the Institution.
[29]
In mid-March 2016, when Ms. Ménard returned to the Institution, the complainant asked to meet with her to inform her of his intention to become a shop steward. She said that she knew that he would inform her of that at the meeting. She had heard about his intention to become one.
[30]
So, the meeting took place, and she, the complainant, and Mr. Henry were present. She said that she acted surprised at the complainant’s announcement because another nurse on the team of 11 nurses was already a shop steward. She found it strange to have 2 shop stewards for a team of 11. She added that for the preceding 20 years, the team had had no shop steward, and that now, there would be 2.
[31]
During her testimony, Ms. Ménard was informed that the complainant would present evidence to show that in 2016, no other nurse on the team was a shop steward. Rather, he was the first nurse on the team to be appointed as a shop steward, and a different nurse on the team was appointed a year later. In response, she said that she believed that the other nurse had been the first to be appointed as the shop steward; someone had told her as much.
[32]
At that mid-March 2016 meeting, Ms. Ménard remembered offering the complainant an opportunity to become her assistant if he was looking for a challenge. She explained that she asked him because she saw leadership qualities in him — qualities that are an asset for a work team, she added, when applied in a positive context of consultation and cooperation. As for him, she said that she liked him very much and that she wanted to help him progress in his career.
[33]
Ms. Ménard stated that speaking with the complainant about his motivation for becoming a shop steward and offering him an opportunity to become her assistant did not constitute interference in the Institute’s administration. She never told him that she did not want him to become a shop steward. She is very familiar with the merits of union activities.
[34]
Ms. Ménard explained that in 2014, before temporarily leaving her position at the Institution, the Service had adopted resourcing indicators, and regional budgets were being allocated based on the inmate population. The Human Resources Management Committee for the Service’s Quebec Region had discussed it. However, determinate work schedules for nursing staff at the Institution had not been reduced at that time. They had to be reduced only later, in 2016.
[35]
Ms. Ménard explained that she returned to her position at the Institution in March 2016. The budget for Health Services at the Institution had been reduced, and she had to ensure that she made optimal use of her resources. She had no choice but to cut work hours at Health Services.
[36]
Ms. Ménard explained that she had first reduced the determinate work schedules of two nurses in determinate part-time positions. She explained that she then used the seniority criterion to reduce the complainant’s determinate work schedule on May 18, 2016. Of the four nurses at the Institution’s Health Services who held indeterminate part-time positions (18.75 hours per week), he had the least seniority, as he had been the last hired. She stated that the other three nurses all had more seniority than he had and that they performed their worked at a high level.
[37]
Ms. Ménard stated that therefore, on May 17, 2016, she informed the complainant that she would reduce his determinate work schedule from 37.5 to 22.5 hours per week. She confirmed that she had taken the opportunity of that meeting to tell him that she did not appreciate his behaviour. According to her, she told him, “[Translation] You have the least seniority, and your attitude at work does not reflect the values of my team.”
[38]
At the hearing, Ms. Ménard explained that she found the complainant arrogant, contemptuous, and lazy. She said that during the three years she was Director, Health Services, Quebec Region, for the Service, she had heard about him. However, she said that she did not want to disclose the identities of those who had reported things to her about him. Nevertheless, she indicated that at a Christmas party at which she had seen him, she took the opportunity to tell him privately that people were reporting that he had an arrogant attitude toward inmates.
[39]
Ms. Ménard mentioned that incivility is unacceptable in the office. She explained that in 2016, she also intervened with several nurses at the Institution’s Health Services to advise them of it. She explained that that was the climate in which she decided to apply the seniority criterion to reduce determinate work schedules in May 2016. However, she added that after reducing the complainant’s determinate work schedule, labour relations problems arose between them.
[40]
Ms. Ménard argued that what she said at her meeting with the complainant on May 17, 2016, did not show that she had any animosity toward him because he was performing union duties, even though, she conceded, her words had been awkward. She argued that her decision to reduce his determinate work schedule was a legitimate management decision.
[41]
Ms. Ménard added that one morning, as she arrived at the Institution, at around 8:15 a.m., she witnessed the complainant chatting casually with another nurse, who was also a shop steward. At that time, there was much to do, and she told them, “[Translation] It is only 8:15, and you’re already chatting!” The complainant replied, “[Translation] Take your time!” She found it mean and arrogant. According to her, such behaviour also demonstrated laziness. She said that often, the complainant was arrogant toward her.
[42]
Ms. Ménard stated that shortly after the complainant was hired, she had already told him once that she had not understood the biting tone that he had used. He had thanked her for saying so and had said that he would watch his tone.
[43]
At their May 17, 2016, meeting, Ms. Ménard also told the complainant that she did not appreciate his behaviour because she had to consider certain problems with his performance. However, she acknowledged that those problems had not yet been the subject of any meetings.
[44]
Later, in the performance agreement that she prepared for the complainant for fiscal year 2016-2017, Ms. Ménard set out her expectations. She added the following as an expectation in June 2016:
[Translation]
...
We are very satisfied with the improvements observed and the positive feedback received about him. Marc-André clearly then offered better collaboration and communication with the team and the partners. He regularly offered to help his colleagues and remained respectful in all exchanges that I personally witnessed.
However, we observed that it is still hard for him to communicate directly with his manager to obtain clarification or make requests. He goes through a third party to obtain them
...
[45]
Ms. Ménard stated that in June 2016, the complainant ignored her and no longer wrote “hello” in his emails. As she found his behaviour unacceptable, she asked to meet with him on June 21, 2016. He showed up with a witness. She told him that he was very contemptuous toward her and that she considered that his hurtful attitude toward her could potentially be harassment, and she showed them the Policy on Harassment Prevention and Resolution. She asked him to stop treating her that way or she would file a complaint against him.
[46]
Ms. Ménard stated that after the June 21, 2016, meeting, the complainant stopped ignoring her, began greeting her, and began using an appropriate tone. Everything went well until the July 14, 2016, incident.
[47]
Ms. Ménard admitted that she had been stressed on July 14, 2016, as she was about to leave her office when the complainant told her that he was leaving his post to carry out an inspection into an incident. As he gave her no details of the inspection’s urgency, she did not appreciate him telling her that he would leave his post, leaving another nurse without help. She added that it was another example of the complainant’s maliciousness — of his malicious attitude — and that “[translation] it showed how he does things”. She said that he told her “[translation] frivolously, nonchalantly, and thoughtlessly” that he had to conduct a workplace health and safety inspection. That was it. According to her, if there had been no malicious intent, he would have asked her for permission to conduct the inspection and would have indicated that it would not take long. If so, she would have cooperated. However, given the situation, she reacted strongly and told him that he could not leave his post and the other nurse, as he was on duty.
[48]
According to Ms. Ménard, the type of behaviour the complainant displayed on July 14, 2016 (having unhealthy relationships and being malicious), exposes managers’ insecurity and further deteriorates work relationships. When she returned from a meeting, she took the time to apologize to him in the presence of three other nurses. She acknowledged that what she had said to him, which was that first, he had to carry out his nurse duties, might have put him in a conflict of loyalty with respect to the other duties he had been assigned.
[49]
Ms. Ménard also stated that she immediately informed her supervisor of the July 14, 2016, incident, as she knew instinctively that the complainant would seek reparations. She added that the tension between them was not proof of her hostility toward the Institute or its representatives. The workplace health and safety inspection was not related to his shop steward role. Her reaction was also unrelated to the fact that a workplace health and safety inspection needed conducting; it was related only the fact that he had acted toward her with malicious intent.
[50]
Ms. Ménard specified that on January 13, 2017, she asked to renew the determinate work schedules of the 4 nurses holding indeterminate part-time positions (18.75 hours per week). However, on February 8, 2017, she received a negative response to her request. She again had to reduce the number of work hours. Therefore, she cut the 3.75 hours that remained on the complainant’s determinate work schedule and cut 11.25 hours from Ms. Perkins, who had been hired a month before him. Later, Ms. Ménard also had to cut the hours of a nurse hired before Ms. Perkins.
[51]
Ms. Ménard added that in 1987 or 1988, she had also been a shop steward for the Institute, and had remained one for five years. She had enjoyed the experience. She said that she had had the privilege of being part of a very good group of people. They all also progressed well. She feels that that experience allows her to be a better manager, as she now understands both sides’ interests. According to her, her past involvement with the Institute also shows that she has no anti-union animus. And she added that she released the complainant to allow him to attend the Service’s labour-management and regional meetings.
[52]
Ms. Ménard also mentioned that the complainant’s determinate work schedule was increased by 11.25 hours per week from January 1 to February 18, 2018, due to organizational needs. It was then reduced by 11.25 hours per week. She also vaguely remembered that once, he declined an offer of additional hours, as he reserved that period for his studies.
[53]
Finally, Ms. Ménard noted that as of the hearing before me, the complainant was in an acting position as the chief of health services, at the Institution. She acknowledged that it was not easy work and that he had agreed to hold the position because nobody had wanted to do it.
[54]
In turn, Ms. Perreault stated that she has worked for the Service since 1986. She is an accredited psychologist. As of the hearing, she was a special advisor to Health Services for the Service’s Quebec Region. From April 2, 2012, to June 10, 2018, she was the director of health services for the Service’s Quebec Region. She explained that the Service has five regional directors of health services, one in each region of the country.
[55]
Ms. Perreault listed some of the authorities delegated to her from 2012 to 2018 and explained that there are three decision-making levels within Health Services in the Service’s Quebec Region. Nurses, who offer frontline care, report to chiefs of health services at the different institutions, who in turn report to the manager of clinical services for that region. That person reports to the director of health services for that region.
[57]
Ms. Perreault provided an overview of the number of full-time equivalents (a full-time equivalent is 37.5 hours per week) allocated to Health Services at the Institution based on resourcing indicators that the Service had adopted. In short, in 2015-2016, given the Institution’s population of 657 inmates, Health Services was entitled to 13 full-time equivalents.
[58]
In 2016-2017, the Institution’s inmate population had fallen to 531. Normally, its Health Services would have been entitled to 11 full-time equivalents. As the nurses there shared 11.8 full-time equivalents at the start of that fiscal year, Ms. Ménard had to reduce that number to 11. However, she obtained 11.4 full-time equivalents, which was related to the Institution’s legitimate organizational needs. Specifically, arrangements had to be made about the new regional pharmacy, to implement an electronic file system, and to manage the payroll problems caused by the Phoenix system. In that context, she decided to reduce the complainant’s determinate work schedule by 15 hours per week, which was equal to 0.4 full-time equivalents.
[59]
In 2017-2018, given that the Institution’s inmate population had fallen to 488, its Health Services was entitled to 10 full-time equivalents. Thus, it fell from 11.4 full-time equivalents to 10. Therefore, Ms. Ménard reduced the complainant’s determinate work schedule to the number of hours guaranteed by his indeterminate part-time position (18.75 hours per week), cutting 3.75 hours per week, or 0.1 full-time equivalent. She also cut 11.25 hours, or 0.3 full-time equivalents, from Ms. Perkins, who had been hired a month after him. Finally, she transferred Ms. Brien to the Institution’s mental health team (one full-time equivalent), as she worked full-time and had more seniority than the complainant and Ms. Perkins, to meet her objective of 10 full-time equivalents at the Institution’s Health Services.
[60]
Ms. Perreault stated that the number of hours guaranteed by an indeterminate position cannot be reduced. However, determinate work schedules are not guaranteed. When operational needs increase, the determinate work schedules are increased. When they decrease, those schedules are reduced. At the Institution, Ms. Ménard was responsible for deciding how to distribute work hours while respecting the resources allocated to the Institution’s Health Services.
[61]
Ms. Perreault stated that the decision to reduce the complainant’s determinate work schedule was based solely on organizational needs and the budget allocated to the Institution’s Health Services. However, she stated that she had no reason to doubt the accuracy of the descriptions that he prepared of his incidents with Ms. Ménard.
[62]
Ms. Perreault mentioned that work hours in an organization can be cut in several ways. One is to apply the seniority rule. The determinate work schedules of employees with the least seniority are reduced. According to her, it is the most objective rule possible, as long as it is known and applied to all employees in the same way.
[63]
As for reducing the complainant’s determinate work schedule, Ms. Perreault stated that Ms. Ménard had identified the dates that the four nurses in the Institution’s Health Services who held indeterminate part-time positions (18.75 hours per week) had begun in their positions. By applying the method of the first nurse with an indeterminate part-time position (18.75 hours per week) to begin a term position, the complainant had been the last one to start. According to Ms. Perreault, this method was identified and applied at the Institution.
[64]
Ms. Perreault confirmed that another way of cutting work hours is to reduce the determinate work schedule of every employee, regardless of seniority. That method was chosen at the Joliette Institution for Women.
[65]
However, according to Ms. Perreault, the seniority method is the most common at the nine institutions in the Service’s Quebec Region. Regardless, the important thing is that employees are advised of the method and that it is applied to everyone.
[66]
Ms. Perreault also gave a third example of a situation in which work hours can be cut. If someone replaces the incumbent of a position and the incumbent returns to work in that position, then the determinate work schedule would be reduced.
[67]
Ms. Perreault also added that Ms. Ménard was usually a staunch defender of the interests of the staff under her. Thus, it was hard for her to cut the work hours of the nurses at the Institution’s Health Services.
[68]
Ms. Perreault also stated that her discussions with the Institute were positive and that she had always worked well with shop stewards. As for the complainant, she added that she had noted positive progress in his approach and that it was good to see. He had gained confidence and had begun speaking with ease, as he was better prepared.
[Translation]
...
... In a regular context and in that of the organization’s reduced needs, performance can be used as a basis for deciding to reduce hours. However, it can be only if the other corrective measures (meetings on the matter documented in the employee’s file, narrowing of objectives in the performance agreement, action plan) have not had the desired effects.
...
[70]
Ms. Perreault confirmed that she was still of the opinion that a decision could be made to reduce a work schedule if the assistance offered to an employee has not been successful. However, she added that it is a last resort for when all the stated alternatives have not worked. She acknowledged that if the complainant had had a performance problem, the Service had not yet begun managing it.
[71]
Finally, Ms. Perreault acknowledged that reducing nurses’ work schedules using the seniority method was not a method that was documented at the Institution. To her knowledge, the Manager, Clinical Services, for the Service’s Quebec Region had discussed reducing work schedules with several chiefs of health services who reported to the Manager, but she was not sure that that was reflected in meeting minutes. She acknowledged that the Service has no policy mentioning that seniority rule and confirmed that she had researched its origins. She indicated that she had found nothing.
[72]
It seems that Ms. St-Julien, a nurse with the Institution’s Health Services who had more seniority than Ms. Perkins, was the first to have her determinate work schedule reduced during fiscal year 2015-2016. Documents from the Service indicate that Nurses Brien and Downer were hired during fiscal year 2009-2010. Ms. Perkins was hired in December 2010, and the complainant in January 2011.
[73]
In cross-examination, Ms. Perreault was asked why the determinate work schedule of Ms. St-Julien, who had more seniority than Ms. Perkins and the complainant, was reduced on March 7, 2016, while his and Ms. Perkins’ were left unchanged. Ms. Perreault replied that she did not know why. She thought that it might have been at that nurse’s request.
[75]
Finally, Ms. Perreault confirmed that she was aware that on May 17, 2016, Ms. Ménard advised the complainant of the reduction to his determinate work schedule because he had filed a grievance about it. Ms. Perreault was asked about his allegation that Ms. Ménard did not cite the seniority rule when she informed him that she would reduce his work schedule. According to him, instead, she told him that she had the discretion to reduce the work hours of the four nurses as well but that she had specifically chosen not to. According to him, she chose instead to reduce only his work schedule because of his arrogance, intimidation, laziness, and thoughtlessness and because the other nurses worked without saying anything.
[76]
Ms. Perreault said that she could not explain Ms. Ménard’s statements to the complainant on May 17, 2016. However, Ms. Perreault added that she had no reason to doubt the description he prepared of that meeting. She understood that Ms. Ménard’s words had been awkward. Specifically, it had been awkward to mention performance at the meeting, as performance issues should be addressed during the performance evaluation period.
[77]
In any event, Ms. Perreault insisted that regardless of what Ms. Ménard said at the meeting, it did not prevent the complainant from fulfilling his shop steward role. It is unfortunate that his determinate work schedule was reduced, but that did not hinder his shop steward work. Specifically, he was able to carry out his shop steward duties despite his reduced work schedule, so the reduced schedule caused no problems.
[78]
For his part, the complainant explained that he has been a nurse at the Institution since January 24, 2011. When he first began his duties, he held a determinate part-time position (30 hours per week).
[79]
Since October 14, 2011, he has held an indeterminate part-time position (18.75 hours per week) at the Institution. At the same time, he obtained a first determinate increase to his work schedule, of 11.25 hours per week. He then obtained several more. From 2013 to 2016, the Institution’s Health Services consisted of 4 nurses in indeterminate part-time positions (18.75 hours per week), whose work schedules were increased for determinate periods.
[80]
The complainant explained that from 2011 to 2018, he reported to two managers, Ms. Ménard from 2011 to 2013 and from mid-March 2016 to 2018, and Benoit Harvey in an acting position from 2013 to March 2016. He added that he had gotten along very well with Mr. Harvey and very well with Ms. Ménard until mid-March 2016. His performance evaluations by Ms. Ménard and Mr. Henry were all positive during those periods.
[81]
In early March 2016, the complainant advised Mr. Henry of his intention to become involved as an Institute shop steward. He wanted to be involved without causing any problem to his employer, as the work environment was healthy. According to him, Mr. Henry took the news well and had no reluctance to him being involved in the union.
[82]
The complainant explained that in mid-March 2016, Ms. Ménard returned to the Institution. He explained that before leaving on vacation in mid-March for two weeks, he asked to meet with her. They met at around 14:00 in her office, and Mr. Henry was there. According to the complainant, she was tense, and she informed him that she was aware of his intention to become a shop steward. She asked him why. He added that she did not seem to understand his desire to be involved with the union. She offered him an assistant chief of health services position if he was interested and looking for new challenges. He stated that he had felt uncomfortable, as Mr. Henry was in that position.
[83]
The complainant also remembered that at that meeting, Ms. Ménard informed him that she had been a shop steward for the Institute because her manager at that time did not get along well with employees. Then their meeting abruptly ended.
[84]
The complainant returned from vacation on April 5, 2016. He began his shop steward training seven days later.
[85]
The Institute appointed him as a shop steward on April 28, 2016.
[86]
In his testimony, he stated that on the morning of May 17, 2016, Ms. Ménard emailed the Institution’s nursing staff, asking them to identify a shift to eliminate due to budget cuts. Her email read as follows:
[Translation]
...
Therefore, for now, I must cut one-half [full-time equivalent], beginning the next work schedule. This means that I must cut one period of 4 hours from one of the 12-hour shifts.
For these reasons, I ask that you “vote” (button on the top left) by tomorrow (Wednesday, 13h00)....
...
[87]
The parties agreed that the purpose of the email was not to identify an employee whose determinate work schedule would be cut but to identify the shift with the least impact on the routine care obligations.
[88]
The same day, on May 17, 2016, a daily meeting was held at 13:00. At it, the complainant asked Ms. Ménard if cutting two days per week was “[translation] the only measure she took”. According to him, she replied that “[translation] those are things said in private”. He asked the question because he was a shop steward, and the Institute had not been advised of this new action.
[89]
Still on May 17, 2016, Ms. Ménard asked to see the complainant in private at 14:00. According to him, she told him in “[translation] ... an accusative and determined tone ...” that the work hours to be cut for his team would all be cut from his determinate work schedule. Thus, she reduced his work schedule from 37.5 to 22.5 hours per week. The meeting lasted approximately 45 minutes. According to him, she told him that she chose him for very specific reasons: he was arrogant, intimidating, lazy, and thoughtless, and the other nurses in the Institution’s Health Services worked without saying anything.
[90]
The complainant remembered replying to Ms. Ménard that cutting nearly half his determinate work schedule would have an enormous impact on his life. He emphasized that he had always received positive feedback from her and Mr. Henry about the quality of his work. He did not understand the basis of her decision. He also told her that he had a strong feeling that she did not like the fact that he had become a shop steward. At the hearing, he added that being demanding did not necessarily mean that he was arrogant and intimidating.
[91]
According to the complainant, at the meeting, Ms. Ménard stated that she could have cut the same number of hours from the four nurses but that she added, “[translation] look at the others ... they do not say a word and they work and that is all I want to see”. She added that he was “[translation] a negative for the group” and that she had to “[translation] look at the best and [that he] was not one of them”.
[92]
As for his alleged arrogance, the complainant added that Ms. Ménard claimed that third parties had told her that he was arrogant toward inmates and other staff members. According to him, she claimed that he was intimidating because he spoke to her with “[translation] intimidating eyes and body language”. He is big, and his look can be very piercing. According to her, employees complained about him, but she refused to tell him who they were because, according to her, they could have faced reprisals from him.
[93]
According to the complainant, Ms. Ménard stated that he was lazy because, one morning as she arrived at work and he was sitting down, she had complained to him about it, and he had replied, “translation] Take your time.” She also noted that once, he did not volunteer to examine an inmate.
[94]
The complainant added that the meeting ended at about 14:45, when Ms. Ménard accused him of thoughtlessness. She told him, “[translation] You could be intimidating your spouse at home and not realize it.” He ended the discussion.
[95]
The meeting upset the complainant. He had always received positive comments from his managers. He felt humiliated and a deep sense of failure. He spoke about it with another shop steward, Mr. Doyle, who suggested that he begin taking notes of his discussions with Ms. Ménard.
[96]
So, the complainant took notes of his discussion during the day with his manager and sent them to his representative. They included the following:
[Translation]
...
That announcement significantly surprised me. I never thought that Andrée could go that far in her actions and insinuation. I did not know that side of her. As mentioned earlier, I have, I believe, always been on good terms with her. I realize that maybe the fact that I am a union representative affected her a lot more than I initially thought. At first, when I told her of my intention to become a steward, she asked me about my motivations because she did not understand.
I attached for you my last two performance management reports, from 2014 and 2015, which are the only ones available in the system. You can see that there were NEVER any questions of all the insinuations that I faced today.
...
[97]
In his testimony at the hearing, the complainant emphasized that his performance had always been adequate and that his behaviour had always been appropriate and ethical. He is hard working, although, one time, he did not offer his services for a medical examination because he was busy with another task.
[98]
The complainant submitted as evidence his performance evaluation reports for 2010-2011, 2011-2012, 2014-2015, 2015-2016, and 2016-2017. Ms. Ménard was his immediate supervisor for the 2010-2011, 2011-2012, and 2016-2017 reports.
[99]
Ms. Ménard’s performance evaluation reports were positive. She noted the following in 2011-2012: “[translation] He is a nurse who is open to criticism and who acknowledges his mistakes if any (missing work due to oversight) ...” and “[translation] In brief, Marc-André’s performance at work is very good, and we hope to be able to increase the hours for his position as soon as possible.”
[100]
The complainant received a letter from Ms. Perreault dated May 18, 2016. It informed him that his work schedule would be cut from 37.5 to 22.5 hours per week from June 16, 2016, to March 31, 2017. His work schedule had never before been reduced.
[101]
In his testimony at the hearing and in his complaint, the complainant stated that one of his colleagues had also told him that another nurse who had intended to become involved in the union a few years earlier had been “[translation] pushed by Andrée because of it”. He wrote the following in his complaint:
[Translation]
...
... At a daily meeting, [the other nurse] had openly expressed her intention to become a shop steward. Then, the three new ones were assigned positions, and [the other nurse] did not receive one. She then resigned a short time after that incident.
...
[102]
The complainant described how another meeting he had with Ms. Ménard played out on June 21, 2016. That morning, she asked to meet with him. He attended with a witness, who was a steward from another union. He explained that no Institute steward was present at the Institution, so the steward from the other union agreed to accompany him. According to him, Ms. Ménard showed discontent when he arrived because he was accompanied by a witness.
[103]
The complainant explained that Ms. Ménard wanted to meet with him that day to advise him that her view was that he had not greeted her since May 17, 2016, that he was ignoring her, and that he no longer wrote “hello” in his emails. She then told him, “[translation] what you are doing really resembles harassment”. She referred to a document that might have been about harassment. She accused him of writing to request leave, and she asked him to change his behaviour.
[104]
According to the complainant, he replied to Ms. Ménard that her allegations were not true. He acknowledged that he did not greet her on the day after their May 17, 2016, meeting, in which she had informed him that she would reduce his determinate work schedule, because that meeting had deeply humiliated and hurt him, and he had not slept much that night. Since their May 17, 2016, meeting, they had spent only about a dozen hours on the same floor, so he did not see the reason for her indignation. He stated that he did not add anything at the June 21, 2016, meeting because he was shocked and did not want to make the situation worse, and he feared that she would file a harassment complaint against him.
[105]
The complainant noted that the emails he wrote to Ms. Ménard contained the word “hello”, and he submitted them as evidence at the hearing. The only exception was when he had forwarded an email received from a third party. However, he stated that his relationship with her could no longer be the same, as she had treated him unfairly. He also constantly feared that she would file a harassment complaint against him.
[106]
The complainant and Ms. Ménard then had a brief performance management meeting on June 30, 2016. She mentioned that she expected him to continue to act professionally with her and his colleagues. He replied that he agreed entirely. In the 2016-2017 mid-year review, she changed the order of his work objectives, putting “[translation] Having a professional and cooperative attitude at all times with clients, colleagues, and his supervisor” as the first objective. She signed it later, on November 10, 2016, and he signed it on November 15.
[107]
On July 14, 2016, he filed a grievance to contest Ms. Ménard’s decision to reduce his determinate work schedule by 15 hours per week. He stated in it that he was the only nurse whose work schedule had been reduced, “[translation] while [his determinate work schedule] had been renewed on February 11, 2016, until March 31, 2017”. That grievance was presented to Ms. Ménard in person at about 14:00.
[108]
In the minutes after the grievance was presented to Ms. Ménard on July 14, 2016, another incident occurred. The complainant was the only member present from the occupational health and safety committee representing employees at the Institution. At around 14:15, he received a call from the Acting Warden of the Institution about water damage that had caused a major power outage that was affecting the entire penitentiary.
[109]
Fifteen minutes later, at about 14:30, the complainant received another call from the Acting Warden. She asked him to inspect the area affected by the water damage with his colleague representing the employer. According to the Acting Warden, it was an urgent situation because inmates were confined to their cells due to the power outage. The main entrance building had to be inspected. The Acting Warden informed him that his colleague would contact him shortly so they could carry out the inspection together.
[110]
Shortly after that, at about 14:50, the complainant informed his manager that he would go to the scene of the incident and carry out an inspection. According to him, she blew her top. She was very agitated and very angry, and she shouted in front of three other nurses, “[Translation] For Christ’s sake, if you think that you are going to carry out inspections, you are part of essential services, and you will not go there, you understand? Essential services!” The complainant had never before heard her shout.
[111]
The complainant was baffled by his manager’s anger. He said that at the same time, his colleague representing the employer called him to tell him that he was ready to do the inspection. He replied that his manager refused to let him do it.
[112]
A short time later, Ms. Ménard received a phone call. The complainant said that after receiving it, she told him that she had misunderstood and that he could go because the inspection would take only about a dozen minutes.
[113]
Then, at about 15:15, when she returned from a meeting, Ms. Ménard called a meeting with the four nurses present, including the complainant, and apologized for her angry reaction. Despite everything, the complainant felt unnerved by his manager’s reactions.
[114]
On September 26, 2016, Ms. Perreault rendered the decision at the second level of the grievance process on the complainant’s grievance challenging the reduction to his determinate work schedule on June 16, 2016. She dismissed it and informed him that management had followed the seniority rule when deciding how to reduce the work hours of the nurses at the Institution’s Health Services. Her decision stated the following:
[Translation]
...
We have assessed the situation of the four part-time employees at Cowansville. We have identified the dates on which they began their duties and the dates on which their work hours were increased. By applying the method of the most recent to begin working on a determinate basis (and then indeterminate, without interruption) and the most recent increase in hours associated with that determinate start date, the reduction in hours applied to you.
...
[116]
Later on, the complainant received a letter from Ms. Perreault dated February 14, 2017. She informed him that as of April 1, 2017, his work schedule would be reduced to the guaranteed minimum for his indeterminate part-time position (18.75 hours per week). On February 20, 2017, he received an email from Ms. Ménard informing him of the same thing. Thus, his work schedule went from 22.5 to 18.75 hours per week. It stayed at 18.75 hours per week until December 31, 2017.
[117]
On September 28, 2017, the complainant met with Ms. Ménard to discuss the equitable distribution of work hours. He also asked her if she would issue new determinate work schedules to distribute the hours in the next period. At that time, the determinate work hours of three of the four nurses had been changed. He had been the first affected by the cut in hours, and Ms. Perkins had been the second. Ms. Downer had also been affected. Ms. Brien had been transferred to the Institution’s mental health team in 2017-2018, so her determinate work schedule was not affected.
[118]
According to the complainant’s notes, on September 28, 2017, Ms. Ménard apparently told him that she would issue new determinate work schedules. She then issued them to Ms. Perkins and Ms. Downer. Ms. Ménard also distributed the available hours between Ms. Perkins and Ms. Downer. Each received 18.75 hours per week more than the guaranteed minimum for their indeterminate part-time positions (18.75 hours per week). The complainant explained that at the time, three nurses were in indeterminate part-time positions (18.75 hours per week). Thus, Ms. Ménard could have offered each of the three nurses 12.50 hours of work above their guaranteed minimum. However, the complainant received none of those hours. According to him, again, this was a reprisal against him.
[119]
The complainant then received a letter from the Manager, Clinical Services, for the Service’s Quebec Region, dated January 19, 2018. It informed him that his work schedule would be 30 hours per week from January 1 to February 18, 2018.
[120]
From February 19 to March 30, 2018, the complainant worked 18.75 hours per week.
[121]
The complainant then received a letter from the Manager, Clinical Services, for the Service’s Quebec Region, dated March 19, 2018. It informed him that his work schedule would be 18.75 hours per week from April 1 to May 31, 2018.
[122]
The complainant again received a letter from the Manager, Clinical Services, for the Service’s Quebec Region, dated April 27, 2018. It informed him that his work schedule would be 18.75 hours per week from June 1 to September 30, 2018.
[123]
However, on June 14, 2018, the complainant received a letter from the Acting Manager, Clinical Services, for the Service’s Quebec Region. He was informed that his work schedule had been increased to 37.5 hours per week from June 14 to September 30, 2018. At that time, Ms. Ménard had left her work, and he had agreed to act in her position as the chief of health services at the Institution.
[124]
The complainant added that he had reported the reprisal he suffered as best he could, through this complaint and a grievance. However, he did not feel that management listened to him. He remembered that Ms. Perreault had told him that she had only one question before rendering her decision at the second level of the grievance process. She had asked him if Ms. Ménard had told him that she did not want him to become a shop steward. He said that he replied in the negative. However, he explained to Ms. Perreault that Ms. Ménard had not been present when he decided to become a shop steward and that the reprisals occurred later.
[125]
The complainant said that he emphasized to Ms. Perreault that when Ms. Ménard returned to the Institution as the chief of health services, she retaliated against him. He added that as the shop steward, his role was to help those who had problems, and his more active role seemed to really bother her. Note that his grievance was awaiting a final decision as of the hearing before me.
[126]
In summary, the complainant stated that Ms. Ménard’s behaviour left him feeling very diminished personally and professionally. And his income was reduced almost by half.
[128]
Mr. Doyle is a nurse at the Joliette Institution for Women and an Institute shop steward. He began working for the Service in 2008. He noted that he is the Institute’s representative for the Service’s Quebec Region on the national labour-management consultation team.
[129]
Mr. Doyle stated that his work schedule was reduced in 2014. However, he explained that unlike the complainant, at that time, he was not the only one affected by the cuts. Since 2010 or 2011, as has the complainant, he has held an indeterminate part-time position (18.75 hours per week). He then worked 37.5 hours per week until April 2014 due to an increase to his schedule. In April 2014, his work schedule was reduced to 30 hours per week. So, he worked 30 hours per week until February 2016. His work schedule was then increased to 37.5 hours per week.
[130]
In his role as an Institute representative for the Service’s Quebec Region on the national labour-management consultation team, Mr. Doyle attended a bilateral meeting on April 10, 2014, at which he was told that the Service had adopted resourcing indicators. A correlation was made between the inmate population at an institution and the number of nurse positions permitted there. The following was noted in the meeting minutes:
[Translation]
...
5. The progressive application of national resourcing indicators means that some determinate contracts are not renewed or are extended but at a reduced rate. The [Institute] asked if regional health services has a strategy planned to inform the determinate employees that they may lose work hours or even their jobs with the [Service]. The [Regional Director, Health Services, Christine Perreault] said that it was done case by case; for a determinate employee who replaces someone who is sick, and that sick person returns to work, it would be hard to justify extending the contract.
...
[131]
Mr. Doyle stated that he was one of three nurses at Joliette Institution for Women who were in indeterminate part-time positions (18.75 hours per week) and who benefitted from increased determinate work schedules (37.5 hours per week). In 2014, due to budget cuts, work hours were reduced. The work schedules of nurses in indeterminate part-time positions (18.75 hours per week) were reduced, but the manager decided to cut the same number of hours from all the nurses at the Joliette Institution for Women. In fact, as one of the three nurses had been seconded to Drummond Institution, the number of hours to be cut from the other two nurses at Joliette Institution for Women was divided in two.
[132]
Mr. Doyle added that he had never heard of the seniority principle or rule in the context of reducing work hours. He stated that it is much fairer to cut the same number of hours from all nurses who have extra work hours under an increased determinate work schedule (37.5 hours per week). Doing it that way allows those employees to continue meeting their families’ needs.
[133]
As for Ms. Perkins, she is a nurse at the Institution. She began working for the Service in December 2010, one month before the complainant. When she was hired, she held a determinate position and worked 30 hours per week. Like the other nurses, she now holds an indeterminate part-time position (18.75 hours per week), which is increased by a determinate work schedule. Her current work schedule was increased to 37.5 hours per week. Thus, she works full-time.
[134]
Ms. Perkins stated that Ms. Ménard asked to speak to her in February 2017. Ms. Ménard informed her at the time that regretfully, she had to reduce Ms. Perkins’ determinate work schedule. According to Ms. Perkins, Ms. Ménard stated that she would have preferred to not reduce Ms. Perkins’ work schedule by 11.25 hours per week at that time but that because Ms. Ménard had stated in response to the complainant’s complaint that the cuts were made based on the principle of seniority, she had no choice but to reduce Ms. Perkins’ work schedule by the full amount of hours that could be cut, as she was the nurse at the Institution who had the least seniority after the complainant.
[136]
The complainant demonstrated that he was the first nurse at the Institution’s Health Services to be appointed a shop steward. He received his appointment on April 28, 2016, which was valid until December 31, 2018. Another nurse with the Institution’s Health Services was appointed a shop steward on April 1, 2017.
[137]
The complainant stated that the other nurse with the Institution’s Health Services became a shop steward because the complainant’s determinate work schedule had been reduced and because Ms. Ménard had threatened to file a harassment complaint against him. The other nurse agreed to become a shop steward to help him, and he did not dare intervene in files involving Ms. Ménard for fear of reprisals. Each steward carried out half the total union representation workload, but the complainant no longer intervened in files involving Ms. Ménard.
V. The parties’ submissions
A. The Service’s position
[138]
The Service acknowledged that if the allegations in support of the complaint are related to a contravention of the prohibition in s. 186(2)(a) of the Act, s. 191(3) requires that it prove that on a balance of probabilities, the complainant’s work schedule was not reduced because he was an Institute representative. The Service must then prove on a balance of probabilities that the contested decision was made as part of the reasonable exercise of its management authority.
[139]
The Service submitted that the complainant considers Ms. Ménard’s actions, particularly in mid-March, on May 17, in June, and on July 14, 2016, reprisals against him for his involvement with the Institute. However, according to the Service, he failed to cite any concrete facts to explain its actions.
[140]
The Service argued that the decision to reduce the complainant’s work schedule had in no way been related to his union involvement. It maintained that that decision was never based on the fact that he had become a shop steward. Ms. Ménard never tried to discourage him from becoming a shop steward or from becoming involved in the Institute’s affairs.
[141]
The Service stressed that Ms. Ménard stated that her decision to cut the complainant’s hours resulted from the reasonable exercise of her rights as a manager. She added that her decision was based solely on the fact that based on new resourcing indicators that the Service had adopted, she had to cut 15 work hours per week at the Institution’s Health Services. She stated that she applied the seniority rule, and as the complainant had the least seniority, she cut his determinate work schedule by 15 hours per week as of June 16, 2016.
[142]
Ms. Perreault also stated that the decision to reduce the complainant’s determinate work schedule was based solely on organizational needs and the budget allocated to the Institution’s Health Services. It was a logical mathematical calculation based on the seniority rule and nothing more.
[143]
According to the Service, management had the right to reduce the complainant’s work schedule. Sections 11.1 and 11.2 of the Financial Administration Act (R.S.C., 1985, c. F-11) give management the right to determine the human resource requirements of the public service and to provide for their allocation and effective use. Management decided to reduce his work schedule based on the fact that he had the least seniority among the employees holding indeterminate work schedules with the Institution’s Health Services. According to the Service, the method did not contravene the prohibitions against unfair labour practices. It also was not interference in union activities or even intimidation by management.
[144]
Specifically, the Service argued that three conditions must be met to support a conclusion that the prohibition in s. 186(2)(a)(i) was contravened: (1) the complainant joined or was a representative of the Institute, (2) Ms. Ménard discriminated against him with respect to employment conditions, and (3) the discrimination was on the grounds that he had joined a labour organization or was an Institute representative. The Service argued that those three conditions were not met.
[146]
Second, the Service argued that Ms. Ménard did not take prohibited action under s. 186(2)(a)(i) of the Act. It maintained that she did not discriminate against the complainant with respect to employment or employment conditions. She did not intimidate, threaten, or take any other disciplinary action against him. His work schedule was reduced based on new resourcing indicators that the Service had adopted. And his work schedule was not reduced below 18.75 hours per week, which was the guaranteed minimum for his indeterminate part-time position (18.75 hours per week).
[148]
Specifically, the Service submitted that there was no evidence to establish that Ms. Ménard cut the complainant’s work schedule based on an anti-union animus. It referred me to Hager v. Statistical Survey Operations (Statistics Canada), 2011 PSLRB 79 (“Hager (2011)”) at paras. 75, 112, 113, 118, and 137. It claimed that that decision states “... that there must be a demonstrated intent on the part of an employer to discriminate on the basis of bargaining agent membership or activity to establish an unfair labour practice ...” and that “[t]he case law supports the proposition that no anti-union animus will be found when the actions of management were a reasonable exercise of its rights.” However, I note that those quotes were not from the PSLRB’s reasons but instead from its summary of the respondent’s arguments in the circumstances.
[150]
The Service maintained that after analyzing the situations of the four nurses in indeterminate part-time positions (18.75 hours per week) at the Institution’s Health Services, management determined their start dates with the Service. On applying the method of the appointment date to a determinate position, followed by an uninterrupted indeterminate appointment and the most recent increase in the determinate work schedule, the cut in hours applied to the complainant.
[151]
The Service also referred me to Hager (2011), at para. 124. That decision states that the manager in that case “... may ... have formed a negative opinion ...” of a union representative. However, according to the PSLRB, “the evidence takes [it] no further”, as it “... does not necessarily establish that [the manager] formed and pursued an active anti-union animus.” The Service argued that it is the same thing in this case. It added that Ms. Ménard acknowledged that her way of telling the complainant that she would reduce his work schedule might have been awkward, as she said things that showed her negative opinion of him, but it was not anti-union animus.
[152]
The Service also argued that the complainant’s past performance evaluations mentioned that he usually spoke very bluntly with others, which some could consider problematic. Ms. Ménard had spoken to him about it earlier and had noted the following in his 2011-2012 performance evaluation: “[translation] He is a nurse who is open to criticism and who acknowledges his mistakes ...”. Mr. Henry also noted the following in his 2015-2016 performance evaluation:
[Translation]
...
... He is blunt. That can sometimes surprise some of his peers; however, discussions are respectful and include explanations for his motives. He expresses his disagreement and supports his thoughts with things that help in understanding his point of view. Good team spirit, offers help, and collaborates with new employer requirements.
...
[153]
The Service added that the comments made by the complainant’s managers about him in his performance evaluations do not support a finding that Ms. Ménard developed an anti-union animus or that she acted on such a sentiment when she reduced his work schedule. The Service argued that the situation is very similar to that of Hager (2011), in which the PSLRB noted the following at paragraph 131:
[131] If I accept that the evidence reveals some operational inconsistencies in the respondent’s decision, does that lend substance to the proposition that its stated reasons for rotating Ms. Henry off the CNT were a pretext? On balance, I think not. The respondent decided to proceed with rotation after the winter survey season and, perhaps not incidentally, at the end of the fiscal year. Its choice of timing may not have been uniformly ideal with respect to each interviewer, but the evidence depicting it as contrived or without operational foundation is not strong....
[154]
According to the Service, the decision to reduce the complainant’s work schedule was objective and was based on the seniority rule. Ms. Ménard also called on him for the distribution of extra work hours, while respecting the procedure adopted in that respect.
[156]
The Service also argued that even though the seniority rule had never before been applied at the Institution, the complainant did not prove that it was applied because Ms. Ménard was motivated by anti-union animus. The Service added that the PSLRB reached a similar conclusion in Gray, at para. 92, as follows:
[92] While Mr. Gray established that the application of the policy in question to his leaves for union business was new, he led no evidence concerning the reason for which it was now applied, to prove that it was motivated by anti-union animus, which he was required to do in order to found a successful complaint. Indeed, the evidence presented by the respondent, and not contradicted by Mr. Gray, revealed that the issues in this case came to light when a CCSC agent worked on his pay file. The reason for which the change occurred was purely circumstantial and administrative.
[158]
The Service maintained that the July 14, 2016, incident involved an occupational health and safety inspection, not the complainant’s shop steward work. It added that being a shop steward was not a requirement to be a member of the Occupational Health and Safety Committee. Ms. Ménard admitted that she had been stressed that day and that she had been about to leave her office when he told her that he would leave his post to carry out an inspection. As he gave her no details as to the inspection’s urgency, she did not appreciate him telling her that he was to leave his post, leaving the other nurse without any help. The tension between them was not proof of hostility toward the Institute or its representatives.
[159]
The Service referred me to Hughes v. Department of Human Resources and Skills Development, 2012 PSLRB 2 at paras. 418 and 419. It argued that like the managers in Hughes, Ms. Ménard had also been involved with the Institute during her long public service career, which shows that she did not have anti-union animus.
[160]
Thus, the Service maintained that it had shown that operational needs were the sole basis for the decision to reduce the complainant’s work schedule and that it was not a false pretext. The Service acknowledged that a work schedule reduction is difficult for an employee; however, his indeterminate part-time position (18.75 hours per week) guaranteed him a work schedule of only 18.75 hours per week. When Ms. Ménard had to cut work hours at the Institution’s Health Services to meet the Service’s target, she exercised her discretion when she decided to reduce the complainant’s work schedule, as he was the nurse with the least seniority of the 4 nurses who held indeterminate part-time positions (18.75 hours per week) with the Institution’s Health Services. She was entitled to adopt the method of her choice to make the cuts in question, as long as it was reasonable. The employer submitted that the seniority rule is reasonable.
B. The complainant’s position
[162]
The complainant maintained that Ms. Ménard retaliated against him after he expressed his interest in becoming a shop steward and then because he became one on April 28, 2016. First, he maintained that the evidence showed that there was no tension between them before he became a shop steward. However, it is clear that the tension appeared once he expressed his desire to become one.
[163]
The complainant cited Ms. Ménard’s reactions and actions, which he found contravened the prohibition in s. 186(2)(a)(i) of the Act. He argued that the facts showed that she was upset that he had become a shop steward and that she went after him. He claimed that the use of the seniority rule was a false pretext to justify (wrongly) reducing his work schedule. According to him, the Service did not discharge its burden of proving that no reprisal was made against him.
[164]
In mid-March 2016, the complainant met with his manager, Ms. Ménard, and they discussed his intention to become a shop steward and the reasons for his interest in it. He was appointed the shop steward on April 28, 2016.
[165]
The complainant argued that Ms. Ménard’s statement was inaccurate that she did not see the need for him to become a shop steward as at that time, one already represented the 11 nurses at the Institution. The evidence clearly showed that another nurse at the Institution, the other shop steward, became one only in April 2017, a year after the complainant.
[166]
The complainant maintained that Ms. Ménard’s May 17, 2016, decision to reduce his work schedule by 15 hours per week and her following actions were reprisals against him because he expressed an interest in becoming a shop steward and did so in April 2016. His view is that several facts support his claim, including that (1) she reacted negatively when he told her of his intent to become a shop steward; (2) she told him that she did not understand his motivations; (3) she tried to discourage him from pursuing his objective and asked if instead he would be interested in the assistant chief of health services position at the Institution; (4) he was the only nurse of the 4 in indeterminate part-time positions (18.75 hours per week) at the Institution’s Health Services at that time whose work schedule she reduced; (5) she told him that she would reduce his work schedule because he was intimidating, lazy, arrogant, and thoughtless, but she could not provide a concrete example of it; (6) she invited him to be like the other nurses, specifically to not say anything and to just work; (7) she suggested to him that if he worked without saying anything, she could increase his work schedule; and (8) she threatened to file a harassment complaint against him if he continued performing his shop steward duties.
[167]
According to the complainant, were it not for reprisals, the work schedules of all the nurses at the Institution’s Health Services who held indeterminate part-time positions (18.75 hours per week) would have been reduced equally, as was done at other institutions. He added that the seniority rule had never before been applied at the Institution. Additionally, as Mr. Doyle stated, who had a role on the Service’s national labour-management consultation team, the rule was not common or known in institutions in the Service’s Quebec Region.
[169]
To support his position that Ms. Ménard’s actions toward him were evidence of reprisals against him because of his involvement as a shop steward, the complainant referred me to Stonehouse v. Canada (Treasury Board), PSSRB File No. 161-02-137 (19770524) at paras. 42 to 44, 46, 47, 49, and 55. In that case, the Public Service Staff Relations Board (PSSRB) stated that “[t]he crucial issue ... is whether the denial to an employee of an appointment to a Unit Head position for reasons including the time spent in the performance of Union responsibilities constitutes discrimination prohibited ...” by the Act. In that case, the PSSRB found that “... there was an admitted element of discrimination in this case as a result of the conduct on the part of the respondents ...”.
[114] Cases of this type often involve indirect evidence, an evaluation of context and a search for underlying patterns. Looking behind the stated reasons for a decision to discover whether other factors or influences were actually at play is always challenging. In the charged scenario in which complainants allege that management retaliated against a bargaining agent, its members or its representatives, the task can be particularly difficult.
[172]
The complainant emphasized that in its response to the complaint on September 23, 2016, the Service stated that the decision to reduce his work schedule was in no way related to his involvement with the Institute. Instead, it stated that the work schedules were reduced by applying the seniority rule. For her part, on May 17, 2016, Ms. Ménard told him that she had reduced his work schedule because of his behaviour.
[173]
According to the complainant, it is appropriate to ask whether the two reasons provided for reducing his work schedule, i.e., the seniority rule and his behaviour, were in fact false pretexts used to conceal an anti-union animus on Ms. Ménard’s part. Therefore, the issue is whether he faced reprisals from her for becoming a shop steward on April 28, 2016.
[174]
The complainant maintained that there were two versions of the discussions at the May 17 and July 14, 2016, meetings, i.e., the version he presented in his testimony, which reflected the notes he took immediately after the incidents, and the version presented by Ms. Ménard. According to him, when faced with such a situation, I must believe the person making an allegation (in this case, him) rather than the person denying it (in this case, Ms. Ménard). In support of this argument, he referred me to Lefeunteum v. Beaudoin, (1897) 28 SCR 89, in which Taschereau, J. made the following comments:
...
I have only one additional reason to give for our interference upon a question of fact with the concurrent findings of the two courts below it is that it appears to me to have been lost sight of that it is a rule of presumption that ordinarily a witness who testifies to an affirmative is to be credited in preference to one who testifies to a negative, magis creditur duobus testibus affirmantibus quam mille negantibus, because he who testifies to a negative may have forgotten a thing that did happen, but it is not possible to remember a thing that never existed.
I have frequently stated that where the positive fact of a particular conversation is said to have taken place between two persons of equal credibility, and one states positively that it took place, and the other as positively denies it, I believe that the words were said, and that the person who denies their having been said has forgotten the circumstance. By this means, I give full credit to both parties.
In Chowdry Deby Perad v. Chowdry Dowlut Sing, Mr. Baron Parke remarks:
...
[175]
The complainant also argued that the real criteria for evaluating witness credibility is to ask whether a testimony is compatible “... with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions” (Faryna v. Chorny, [1952] 2 D.L.R. 354 (B.C.C.A.) at 356 and 357).
[176]
In support of his arguments, the complainant also referred me to Lamarche, at para. 58, in which the PSLRB noted the following:
[58] ... The fact that, on other occasions, Mr. Marceau appointed to management positions persons who had assumed union responsibilities does not show that, in the specific circumstances of this case, his decision was not motivated by anti-union animus toward the complainant.
[177]
The complainant argued that although Ms. Ménard had been a shop steward in the 1980s, it was not evidence that the arrival of a shop steward on her team did not bother her. After that, her management methods could have been questioned and her actions and her supervision monitored. And her statement was not true that she reacted as she did when the complainant told her that he was considering becoming a shop steward because her team already had one. In the circumstances, her reaction was motivated by the fact that he could question some work methods and some of management’s actions.
[179]
The complainant specified that he did not challenge the need to reduce the nurses’ work schedules during the period in question. He maintained that the resourcing indicators were valid but that they did not inform the choices of the nurses whose work schedules would be reduced. As Ms. Perreault expressed in her testimony, the important thing was that the nurses be informed of and know about the method chosen for reducing work schedules and that it then be applied to everyone.
[180]
The complainant added that Ms. Perreault acknowledged that the use of the seniority rule at the Institution’s Health Services was never documented. She stated that she had looked but that she had not found anything. And, as Mr. Doyle, Ms. Perkins, and the complainant confirmed, the Institution’s Health Services had not applied it in the past. Therefore, it was never communicated in advance to the nurses affected, and they did not know of it. Instead, the rule of applying reduced hours to employees equally was known and applied at institutions in the Service’s Quebec Region. Mr. Doyle confirmed that that rule was applied at the Joliette Institution for Women.
[181]
The complainant added that in addition, the seniority rule was not applied to everyone. Specifically, Ms. St-Julien was second in seniority in 2015-2016. Although she had more seniority than Ms. Perkins and the complainant, her determinate work schedule was reduced as of March 7, 2016. On this point, the complainant noted that Ms. Ménard stated that she had first decided to not renew the determinate work schedules of two nurses, Ms. St-Julien and Ms. Laflamme. Ms. St‑Julien had more seniority than Ms. Perkins and him. However, her work schedule was not renewed because she and Ms. Laflamme were not in indeterminate part-time positions (18.75 hours per week) at the Institution. Thus, contrary to Ms. Perreault’s statement that when calculating seniority, an employee’s hire date with the Service is not changed by a change of institution, it was not honoured at the Institution. There, the work schedule of Ms. St-Julien, who had more seniority with the Service than Ms. Perkins and the complainant, was not renewed despite her higher seniority with the Service than the others.
[183]
In that Directive, “continuous employment” is defined as follows:
[184]
The Public Service Superannuation Act (R.S.C., 1985, c. P-36) defines “public service” as follows:
... means the several positions in or under any department or portion of the executive government of Canada ....
[186]
The complainant also noted that at the May 17, 2016, meeting with Ms. Ménard, she confirmed to him that she had the discretion to reduce equally the work schedules of nurses in indeterminate and term part-time positions (18.75 hours per week). However, it was not what she chose to do. Without mentioning the seniority rule, she told him simply that she was exercising her discretion to reduce his determinate work schedule by all the hours that could be cut. Her anger at him was clear when she informed him of her decision, and it was probably done because of his interventions and his shop steward demands.
[187]
The complainant argued that another fact showed that Ms. Ménard made reprisals against him. Ms. Perkins stated that when Ms. Ménard informed her in February 2017 that she had to reduce Ms. Perkins’ determinate work schedule, she told Ms. Perkins that she hated to do it but that she had no choice but to cut a large number of hours from her schedule because in her response to the complainant’s complaint, she had stated that the seniority rule had been used to reduce his work schedule. Therefore, he emphasized that the response to his complaint in September 2016, in which the Service indicated that his work schedule was reduced based on the seniority rule being applied, was a pretext or an excuse to disguise the reprisal against him on May 17, 2016.
[188]
The complainant also argued that if it were true that a so-called objective and neutral rule was adopted to make the targeted cuts in hours, Ms. Ménard would not have attacked and denigrated him when she informed him that she was cutting his determinate work schedule. According to him, decisions cannot be made and carried out for revenge.
[189]
The complainant also argued that Ms. Ménard’s statement that she chose to reduce his determinate work schedule due to performance issues does not hold up; nor does the Service’s statement that the seniority rule that was applied was objective and neutral. He had no performance issues, and if he did, Ms. Ménard was required to honestly discuss them with him. Specifically, the performance management process allows the employer to provide feedback to an employee who has performance issues. However, he noted that he performed at a high level, which all his performance evaluations showed.
[190]
Ms. Ménard also told the complainant that she would reduce his determinate work schedule and not those of the other nurses because they were productive and worked without saying anything. However, according to him, work performance would not have been relevant had the seniority rule been the real reason for the decision to reduce his work schedule. Similarly, his alleged behaviour (arrogance, thoughtlessness, and intimidation) would not have been relevant had the seniority rule been the real reason for the decision to reduce his work schedule.
[191]
Similarly, the disciplinary process allows the employer to address problems with an employee’s behaviour. However, neither that process nor the performance management process was used to address the complainant’s alleged behaviour or performance issues. The only comment about his conduct, apart from Ms. Ménard’s in 2016-2017, was in his 2015-2016 performance evaluation. Mr. Henry noted the following:
...
... He is blunt. That can sometimes surprise some of his peers; however, discussions are respectful and include explanations for his motives. He expresses his disagreement and supports his thoughts with things that help in understanding his point of view. Good team spirit, offers help, and collaborates with new employer requirements....
[192]
Finally, the complainant argued that Ms. Ménard’s credibility can be questioned for several reasons. On one hand, at the hearing, she stated that she really liked him. However, in her later description of the events, several times, she noted that he was malicious and that he had unhealthy relationships. He highlighted the irreconcilability of her testimony. According to him, her testimony showed that she had much animosity toward him and that she falsely stated that she really liked him. Thus, her testimony as a whole would not be credible.
VI. Analysis
A. Contravention of the prohibition in s. 186(2)(a)(i) of the Act
[193]
The complainant alleged that ss. 185 and 186(2)(a)(i) of the Act were violated.
[196]
For the following reasons, I find that the evidence, once combined, was insufficient to refute, on a balance of probabilities, the presumption that the complainant was discriminated against with respect to employment conditions because he became a steward of an employee organization on April 28, 2016. The burden of proof was reversed, and the Service did not discharge its burden of proving that the complaint was not founded.
[197]
First, it is not contested that the complainant was an Institute shop steward from April 28, 2016. Therefore, he represented an employee organization at the relevant time.
[198]
Second, I note that the prohibition in s. 186(2)(a)(i) of the Act includes the following: refuse to employ or to continue to employ or otherwise discriminate against any person with respect to employment, pay, or any other term or condition of employment, or intimidate, threaten, or otherwise discipline any person. In this case, Ms. Ménard’s alleged actions included her decision to reduce the complainant’s determinate work schedule as of June 16, 2016. Reducing a work schedule can represent discrimination with respect to employment, which is prohibited under s. 186(2)(a)(i), if, for example, it is motivated by the fact that the person is a shop steward. The Service did not challenge that reducing the complainant’s work schedule affected his employment conditions.
[199]
Third, therefore, it must be determined whether the Service proved that Ms. Ménard’s alleged actions were not motivated by the fact that the complainant was a shop steward. In my opinion, it did not discharge that burden.
[200]
First, the evidence showed that there was no tension between Ms. Ménard and the complainant before he expressed his intent to become a shop steward. However, following his shop-steward appointment on April 28, 2016, their relationship deteriorated considerably. Their testimonies showed that his behaviour and interventions as of April 28, 2016, increased her anger toward him. A short time later, she considerably reduced his determinate work schedule.
[201]
It is true that Ms. Ménard and the complainant presented very different versions of what they said in mid-March 2016, at the meeting on May 17, 2016, and at later meetings. However, I am of the view that his version is more credible than hers. Specifically, having considered all the evidence, I feel that the accounts presented by the complainant and supported by the testimonies of Ms. Perkins and Mr. Doyle are more probable. In my opinion, “... a practical and informed person ...” would find them consistent “... with the preponderance of the probabilities ... reasonable in that place and in those conditions” (see Faryna).
[203]
Initially, Ms. Ménard stated that her reaction of surprise and lack of understanding when the complainant told her in March 2016 that he wanted to become a shop steward was because she did not see the need for another one on the team of 11 nurses at the Institution, as at that time, the team already had one. However, this explanation is impossible. The evidence clearly showed that the other nurse with the Institution’s Health Services was appointed as a shop steward only in April 2017, a year after the complainant became one. The evidence also established that the other nurse agreed to become a shop steward at the complainant’s request, to help him, as the complainant had been threatened with a harassment complaint if he persisted in performing his union representative duties.
[204]
Second, although the allegation that the complainant faced reprisal because he was a shop steward is deemed proven, some facts are quite troubling when considered together, and they support that allegation, as follows. Ms. Ménard did not understand why he was motivated to become a shop steward in March 2016 and asked at that time about his interest in the assistant chief of health services role at the Institution if he was looking for a challenge. On May 17, 2016, she cited the alleged issues with his behaviour to justify her decision to reduce his determinate work schedule, although she had never before mentioned his behaviour issues. On May 17, 2016, she encouraged him to do the same as did the other nurses with the Institution’s Health Services, specifically to work without saying anything, and insinuated that if he did so, she might increase his work schedule. And she insulted him on July 14, 2016, in front of his colleagues, when he was to conduct an occupational health and safety inspection.
[205]
Third, the evidence tends to indicate that Ms. Ménard did not cite the seniority rule when on May 17, 2016, she advised the complainant that she would reduce his determinate work schedule. The evidence leads me to find that instead, she based her decision on the fact that she considered his interventions when performing his shop steward duties as acts of intimidation. She also added that he was lazy, arrogant, and thoughtless. On that subject, I note that initially, she stated in her testimony that she really liked him. However, she later clearly expressed that she found him and his conduct malicious and that her opinion was that his intentions and interventions were malicious in every way. In my opinion, those statements are irreconcilable.
[207]
I found the complainant’s testimony coherent and credible. It clearly established that he tried to fulfil his roles as nurse and as shop steward once he was so appointed. Ms. Perkins also corroborated his statement that the seniority rule had not before been known or applied at the Institution. There is also no evidence that he had behaviour or performance issues.
[208]
However, I would like to note that I do not agree with the complainant’s claim that when two versions are on hand of what was said at a given time, I must give preference to the version from the person making an allegation. Instead, I prefer the approach the PSLRB adopted in Gal v. Chouinard and St Amand, 2014 PSLRB 92, when it stated the following at paragraph 38:
[38] ... Subsection 191(3) of the Act represents a reversal of the burden of proof, which therefore forces the respondents to deny or disprove the complainant’s allegations. If the complainant’s claim applied strictly, no respondent could meet the burden imposed by that paragraph....
[209]
In summary, the Service did not demonstrate that the complainant’s determinate work schedule was reduced as of June 16, 2016, for reasons other than his involvement as a shop steward. Instead, the evidence confirmed that it was precisely because of his observations, interventions, and demands as a shop steward that Ms. Ménard reduced only his work schedule at that time.
[210]
I have considered the case law that supports the proposition that no anti-union animus will be found when management’s actions were a reasonable exercise of its management rights. However, in my opinion, the reason the Service provided in response to the discrimination complaint with respect to employment conditions, namely, all the hours were cut from the complainant’s determinate work schedule because he was the employee with the least seniority and the last one to receive an indeterminate part-time position (18.75 hours per week), confirms that a false pretext was used to conceal discrimination against him because he was a shop steward. I reach that conclusion for the following reasons.
[211]
Ms. Perreault’s testimony clearly indicates that had the seniority rule been applied to reduce the complainant’s determinate work schedule, its existence would have been clearly communicated in advance to the nurses in the Institution’s Health Services and specifically to him, at least when Ms. Ménard told him that she would reduce his work schedule. As already mentioned, instead, the evidence leads me to find that Ms. Ménard did not cite the seniority rule when on May 17, 2016, she advised him that she would reduce his work schedule. Rather, she justified her decision to him by stating that she considered his interventions intimidating and that she found him lazy, arrogant, and thoughtless.
[212]
After his schedule was reduced, the complainant filed his unfair labour practice complaint against Ms. Ménard. For the first time, in its response to the complaint, the Service stated that his work schedule had been reduced by applying the seniority rule.
[214]
However, Ms. Ménard had not previously considered the date on which the Service had hired Ms. St‑Julien when she reduced Ms. St-Julien’s determinate work schedule as of March 7, 2016. Ms. St-Julien had more seniority than Ms. Perkins and the complainant at that time. However, her work schedule was not renewed because she did not hold an indeterminate part-time position (18.75 hours per week) at the Institution. Nevertheless, Ms. Perreault confirmed that when calculating seniority, the date on which the Service hired someone should not be changed by a change of institution.
[215]
Ms. Perkins, Ms. Ménard, Ms. Perreault, and the complainant also confirmed that the Institution’s Health Services had never before applied the seniority rule. And Mr. Doyle, who had a role on the Service’s national labour-management consultation team, stated that that rule was not common at the Service’s institutions.
[216]
I note that Ms. Perreault stated that the seniority rule was applied at other Service institutions. However, she specified that she searched but that she did not find anything in writing on applying that rule at the Institution.
[217]
In summary, the Service did not establish that the complainant’s work schedule was reduced not because he was a shop steward. On the contrary, the evidence suggests that in May 2016, in anger, Ms. Ménard decided to reduce his work schedule by all the hours to be cut from the Institution’s Health Services because she did not appreciate his interventions.
[218]
For those reasons, I find that the Service did not prove that the actions alleged in the complaint were not motivated by the fact that the complainant was a shop steward. Specifically, I find that it did not show that the prohibition in s. 186(2) of the Act was not contravened when Ms. Ménard decided to reduce his determinate work schedule as of June 16, 2016.
B. Remedy
[219]
The complaint was filed on July 28, 2016. In light of the complainant’s arguments, his complaint is continuous as he also sought relief for the losses that he incurred from the reduction of his work schedule as of April 1, 2017. The Service did not object to the application for damages for the period after the complaint was filed. Instead, it indicated that I should not order damages for the additional hours and overtime he worked during that period.
[220]
Does the supposition that the contravention alleged in the complaint was ongoing apply in this case? I believe it does, as the Service presented evidence on the period in question and because through its conduct at the hearing, it agreed to that amendment to the complaint.
| Determinate work schedule
|
|
|---|---|
| increased to 37.5 hours per week; acting appointment as the chief of health services
|
[222]
At the hearing, the complainant described the impact of the decision to reduce his determinate work schedule and Ms. Ménard’s actions on his life. He said that he is a calm and composed person. However, he explained that he found it very difficult to go to work when he became a shop steward and when Ms. Ménard reduced his work schedule by 15 hours per week and then by 3.75 hours per week. At that time, she suggested that she could file a harassment complaint against him because, in her opinion, he was intimidating. Thus, he was apprehensive before each meeting with her. He had the impression that she placed no value on his dedication and on the quality of his work.
[223]
The complainant said that Ms. Ménard considering him arrogant and intimidating was very humiliating. He explained that he had always intervened with his colleagues and managers with respect to nurses’ safety and protection. However, he remained courteous. He also stated that he did not understand how she had come to consider him lazy or thoughtless. In all his years in the job market, he had never been treated that way.
[224]
The complainant sincerely believes that his colleagues appreciate him and that his work is done well. He is a CPR instructor (Heartsaver) and teaches that program in his workplace. He added that he became a shop steward to try to improve existing agreements with management, but that in the end, Ms. Ménard simply reduced his determinate work schedule to get him out of the way. He added that had he known that he would face reprisals from her, he would not have become a shop steward. Thus, he would have avoided accumulating debt for his family because of his lost salary.
[225]
He said that he had sleepless nights because of his work situation and that he was constantly worried about the fact that his income had been cut almost in half. In fact, he worried significantly about the security of his income, as it affected his entire family.
[226]
The complainant explained that he did not tell all his family members about his work problems. He was ashamed to have to talk about it. He feared more reprisals each time he had to communicate with Ms. Ménard, and he did not want his family to see that sense of failure. He experienced that sense of failure and felt anger, sadness, and anxiety every time he went to work.
[227]
However, the complainant regularly confided in one family member, who supported him as much as possible during that difficult period. He explained that since the family income had been considerably reduced, the family member worked extra shifts at work to increase the family’s income. Knowing that the complainant had already had numerous problems at work, and unknown to him, the family member obtained a new credit card, which was used to buy groceries.
[228]
As evidence, the complainant filed the summary of transactions on the family member’s credit card from January 28, 2017, to February 16, 2017. The balance at that time was $1323.92. The complainant explained that at that time, he worked only part-time and that it was a very difficult period financially for his family. Given the financial constraints that continued for the family, the balance on the credit card increased over the following months. He filed as evidence the summary of transactions on the card from July 22 to August 21, 2018. At that time, the new balance had climbed to $5280.05.
[229]
The complainant also accumulated a debt. He filed as evidence the financing plan that he obtained in January 2017 to help him meet his family’s needs. At that time, his contracted debt was $4000, and the financing plan allowed him to repay bank loans he had taken out and to postpone the due date of his debt.
[230]
As evidence, the complainant also filed his statements of earnings to show the amount of salary that he lost. Some of the statements display his full-time salary, while others show his reduced salary when his determinate work schedule was shortened.
[231]
The complainant seeks compensation for the pay and benefits that he lost and for pain and suffering and psychological harm, along with a declaration that Ms. Ménard’s actions were contrary to the Act and the collective agreement.
[232]
Considering his statements of earnings, the complainant estimates that following Ms. Ménard’s decisions, he lost approximately $45 000 over two years. He seeks compensation both for that amount and for the debts that he and his family incurred.
[233]
On June 14, 2018, the complainant was appointed Acting Chief, Health Services, at the Institution. He returned to full-time work.
[235]
Section 192(1) of the Act gives me the authority to issue any order I consider necessary in the circumstances against the party referred to in the complaint. It reads as follows:
192 (1) If the Board determines that a complaint referred to in subsection 190(1) is well founded, the Board may make any order that it considers necessary in the circumstances against the party complained of, including any of the following orders:
...
(b) if the employer has failed to comply with paragraph 186(2)(a), an order requiring the employer to
(i) employ, continue to employ or permit to return to the duties of their employment any person whom the employer or any person acting on the employer’s behalf has refused to employ or continue to employ, has suspended, transferred, laid off, discharged for the promotion of economy and efficiency in the Royal Canadian Mounted Police or otherwise discriminated against, or discharged contrary to that paragraph,
(ii) pay to any person affected by that failure compensation in an amount that is not more than, in the Board’s opinion, the remuneration that would, but for that failure, have been paid by the employer to that person, and
(iii) rescind any disciplinary action taken in respect of any person affected by that failure and pay compensation in an amount that is not more than, in the Board’s opinion, any financial or other penalty imposed on the person by the employer ....
...
[236]
I find that the appropriate remedy consists of paying the complainant compensation equivalent to the pay that he would have received had there been no contravention of the prohibition in s. 186(2)(a)(i) of the Act. I invite the parties to determine the exact amount due the complainant. If they are unable to agree, I will remain seized of the issue for 90 days.
[237]
I note that in this case, the psychological suffering that the complainant experienced from the contravention of the prohibition in s. 186(2)(a)(i) of the Act is difficult to evaluate objectively and to quantify. However, the suffering certainly included his feelings of humiliation and injustice and his concerns about his workplace and his family’s financial security and psychological well-being. And he experienced that suffering for a long time. In light of the evidence and the arguments, I find that damages in the amount of $5000 are reasonable and appropriate in the circumstances.
[238]
For all of the above reasons, the Board makes the following order:
(The Order appears on the next page)
VII. Order
[239]
I declare that the Correctional Service of Canada is the respondent in this case.
[242]
The complaint is allowed.
FPSLREB Translation
a panel of the Federal Public Sector Labour Relations and Employment Board